When spouses get divorced in South Carolina, dividing their property is a key part of the process. In fact, for many couples, this is the most time-intensive part of their divorce. While South Carolina’s divorce laws establish specific parameters for dividing marital property, divorcing spouses have a significant amount of flexibility to find a solution that works for both of them—and it will generally be in both spouses’ best interests to achieve an amicable resolution.
With this in mind, what do you need to know about dividing property in a South Carolina divorce? Here are some key considerations from the divorce lawyers at DeLuca Maucher:
South Carolina Requires “Equitable Apportionment” of Marital Property
While some states require spouses to divide marital assets equally when going through a divorce, South Carolina does not. Instead, Section 20-3-620 of the South Carolina Code of Laws calls for “equitable apportionment.” While an equal distribution might be considered “equitable” given a couple’s family and financial circumstances, unequal distributions can also be considered equitable.
South Carolina law calls for considering several factors to decide what is equitable in any particular circumstances. These factors include (but are not limited to):
- The duration of the marriage
- The spouses’ respective ages and health conditions
- The value of the couple’s marital property
- Each spouse’s anticipated post-divorce income
- Each spouse’s right to nonmarital property (discussed in detail below)
- The tax implications of various distribution options
- Any evidence of marital misconduct or fault
But, there is one major exception: If spouses enter into a prenuptial or postnuptial agreement that addresses the distribution of their property in the event of a divorce, the terms of their contract will govern—unless the agreement is unenforceable under South Carolina law. If you have a prenuptial or postnuptial agreement, you will want to bring this to your initial divorce consultation.
Not All Property is Considered “Marital” in a South Carolina Divorce
Another key factor to remember is that not all property is considered “marital” in a South Carolina divorce. In most cases, both spouses will also have various “nonmarital” assets.
What is a “nonmarital” asset, and why is this important?
Unlike marital assets, nonmarital assets are not subject to equitable apportionment during the divorce process. In other words, any nonmarital assets you own are yours to keep. This makes it critical to identify your nonmarital assets at the outset of the divorce process—as you do not want to put these assets on the table unnecessarily.
Generally speaking, nonmarital assets fall into three categories: (i) assets owned before the marriage, (ii) assets received as gifts (other than gifts between spouses), and (iii) assets received through inheritance. However, there are exceptions, and assets can sometimes lose their nonmarital status. With this in mind, while it is crucial to make a list of all assets that you believe qualify as nonmarital, it is equally vital that you go over this list carefully with your divorce lawyer.
Options for Equitably Apportioning Marital Assets in a Divorce
When it comes to distributing (or equitably apportioning) marital assets, divorcing spouses have a wide range of options available. In most cases, achieving an equitable apportionment that satisfies both parties will involve combining these options into one overall workable plan. Broadly speaking, some of the primary options include:
- Dividing individual marital assets (i.e., agreeing that each spouse will keep half of the funds in their savings and checking accounts).
- Selling marital assets and dividing the proceeds (i.e., selling a vacation home if neither spouse is interested in continuing to own the property).
- Agreeing that one spouse will receive certain marital assets in exchange for giving up his or her right to others (i.e., agreeing that one spouse will keep the family home while giving up other assets of substantially equal value).
But these are genuinely just examples. When divorcing spouses are willing to work together (and each engage an experienced divorce lawyer to look out for their best interests), they can find creative solutions that satisfy their respective wants and needs. These creative solutions can range from using a Qualified Domestic Relations Order (QDRO) to take money out of a retirement account without triggering penalties to making copies of digital libraries, children’s artwork, and other keepsakes.
Title Doesn’t Matter
At this point, it’s essential to address a common misconception. When determining which assets are on the table in a divorce, title doesn’t matter. Many people assume that if one spouse holds the title to a piece of real estate or a vehicle, this means that it is his or her nonmarital property. But this is not the case.
While this is important to remember when thinking about how you may want to divide your marital property, it is also essential to remember as you get deeper into the divorce process. If you are thinking about transferring title to an asset as part of your divorce, you will need to make sure that any lenders are on board, and you will need to take care of the necessary paperwork along the way.
Divorcing Spouses Must Divide Their Marital Debts, Too
This brings us to our final topic of discussion: Along with dividing their marital assets, divorcing spouses in South Carolina must also divide their marital debts. If you have a car loan or mortgage, this will play an essential role in determining what is equitable in your divorce. In many cases, spouses will use the divorce process as an opportunity to pay off certain debts; however, here, too, there are several options that you will want to consider before deciding how to move forward.
Schedule an Initial Divorce Consultation at DeLuca Maucher Today
If you are considering filing for divorce and would like to know more about the property-related considerations involved, we invite you to contact us. To schedule an initial divorce consultation at DeLuca Maucher, please call 843-572-1711 or request an appointment online today.